Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017

In brief

Regulations made under the Equality Act 2010 that impose specific duties on the public authorities listed in Schedule 2, to enable them to perform the public sector equality duty in section 149(1) of the Act better (Equality Act 2010 s.153(1)). They contain two separate duties with different reach. First, the gender pay gap duty (reg 3 and Schedule 1) applies only to a relevant public authority: a Schedule 2 authority with 250 or more employees on the snapshot date of 31 March (Sch 1 para 1(1)). It must publish six figures comparing male and female employees: the mean and median gaps in hourly pay, the mean and median gaps in bonus pay, the proportions of men and women paid a bonus, and the proportions in each quartile pay band (Sch 1 para 2(1)), within 12 months beginning with the snapshot date (Sch 1 para 2(2)), on its own website and on a website designated by the Secretary of State (Sch 1 para 14). Second, the information and objectives duties apply to every Schedule 2 authority, whatever its size. Each must publish, at least once a year, information to demonstrate its compliance with section 149(1) (reg 4(1)-(2)), including information about people who share a relevant protected characteristic who are its employees or who are affected by its policies and practices (reg 4(3)); only the employee element is disapplied for an authority with fewer than 150 employees (reg 4(4)). Each must also publish one or more equality objectives at least every four years, and each objective must be specific and measurable (reg 5). The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI 2017/172) apply a similar pay gap duty to employers with 250 or more employees on 5 April, other than persons specified in Schedule 19 to the Act and government departments and armed forces not specified there (SI 2017/172 reg 1(2) and (6)).

Key provisions

• SI 2017/353 reg 2 — Meaning of employment : Employment means employment under a contract of employment, a contract of apprenticeship or a contract personally to do work, and Crown employment (reg 2(1)). Service in the armed forces is included (reg 2(4)). An employee of an English local authority at a maintained school is treated as an employee of the school's governing body (reg 2(3)). A constable or police cadet is treated as employed by the relevant officer (reg 2(5)): for a member of a police force or a police cadet appointed for a police area, the chief officer of police; otherwise the person who has the direction and control of the body of constables or cadets in question (reg 2(6)(c)).
• SI 2017/353 Sch 1 paras 1-2 — Gender pay gap duty: 250 or more employees on 31 March : A relevant public authority is a public authority listed in Schedule 2 which has 250 or more employees on the snapshot date, the 31st March in the year to which the information relates (Sch 1 para 1(1)). It must publish, for 2017 and each later year, the mean and median differences in hourly pay of male and female full-pay relevant employees, the mean and median differences in bonus pay, the proportions of male and female relevant employees paid bonus pay, and the proportions of male and female full-pay relevant employees in each quartile pay band (para 2(1)(a)-(f)), within 12 months beginning with the snapshot date (para 2(2)). It need not include data on a person employed under a contract personally to do work if it does not have the data and it is not reasonably practicable to obtain it (para 2(3)).
• SI 2017/353 Sch 1 paras 3-13 — Pay definitions and calculations, all by reference to male and female employees : Paragraphs 3 to 7 define ordinary pay, bonus pay, the pay period, the hourly rate of pay and weekly working hours. Paragraphs 8 to 13 set out how each figure is calculated for male and female employees. For the quartile figures, where employees on the same hourly rate fall within more than one quartile pay band, the authority must so far as possible ensure that the relative proportion of male and female employees on that rate is the same in each of those bands (para 13(2)).
• SI 2017/353 Sch 1 para 14 — Publishing the gender pay gap figures : The figures must be published on the authority's website in a manner accessible to all its employees and to the public, for at least three years from the date of publication (para 14(1)), and also on a website designated by the Secretary of State (para 14(2)). For the armed forces, a government department may publish on their behalf (para 14(3)-(4)).
• SI 2017/353 reg 4 — Publishing equality information: every listed authority, at least annually : Each public authority listed in Schedule 2 must publish information to demonstrate its compliance with the duty imposed by section 149(1) of the Act (reg 4(1)), not later than 30 March 2018 and then at intervals of not more than one year (reg 4(2)). The information must include, in particular, information relating to persons who share a relevant protected characteristic who are its employees, or other persons affected by its policies and practices (reg 4(3)). "Paragraph (3)(a) does not apply to a public authority with fewer than 150 employees" (reg 4(4)).
• SI 2017/353 reg 5 — Equality objectives: at least every four years, specific and measurable : Each public authority listed in Schedule 2 must prepare and publish one or more objectives it thinks it should achieve to do any of the things mentioned in section 149(1)(a) to (c) of the Act (reg 5(1)). The objectives must be published not later than 30 March 2018 (subject to reg 9(2)) and then at intervals of not more than four years (reg 5(2)), and each must be specific and measurable (reg 5(3)).
• SI 2017/353 reg 6 — Manner of publication : Information under regulations 4 and 5 must be published in a manner accessible to the public (reg 6(1)) and may be published within another published document (reg 6(2)).
• SI 2017/353 Sch 2 — The public authorities covered : Schedule 2 lists the public authorities required to publish information, under headings including the armed forces, broadcasting, education, health, local government, police, regulators and transport. Many entries are English bodies (for example a county council or district council in England); others include the armed forces, the BBC (with exceptions for content services) and police bodies.

When relevant

For a public authority listed in Schedule 2 in three situations. First, when checking whether it must report its gender pay gap, which turns on having 250 or more employees on 31 March (Sch 1 para 1(1)), and on what basis it records and processes employees' sex for that purpose. Second, when scoping the equality information it must publish at least once a year under regulation 4, which binds every listed authority whatever its size; only the employee information in reg 4(3)(a) is not required below 150 employees (reg 4(4)). Third, when setting, reviewing or challenging its equality objectives under regulation 5, including objectives on trans inclusion. It governs the authority as employer and as decision-maker, and so reaches its employees and the people affected by its policies and practices. First check whether the body is in the current revised Schedule 2. Toolkit analysis: the pay gap figures count only male and female employees and make no provision for non-binary staff or holders of a gender recognition certificate, and the Regulations say nothing about the confidentiality of gender recognition information, which is governed by the Gender Recognition Act 2004 s.22 (GRA2004) and data protection law (UK-GDPR). Other employers with 250 or more employees on 5 April, outside Schedule 19 to the Equality Act 2010, report under SI 2017/172 (GPG-INFO-REGS-2017). Decision support, not legal advice.